Articles

What comes to mind when you think of the tenure of the former police chief? For us, it is the haunting photo in The Herald-Sun of riot police, blanketing protesters with tear gas in CCB Plaza, beneath the city's Christmas tree. An American flag waves from a pole high above. Through that haze it is hard to remember the man who came to town with promise.

Having been involved in some of the public controversies with ex-chief Jose Lopez, we offer some thoughts about the Bull City's opportunity to police itself more effectively by changing the culture of its police department. A new chief can improve policing in Durham if reforms are put in place by the department, the city manager and the elected district attorney.

No community cooperates with a police force they fear and mistrust. When a community loses confidence in the fairness, compassion and restraint of its police, residents are afraid to place their lives and fortunes in the hands of police officers. Such an environment breeds avoidance, evasion and resistance. For this reason, distrust and fear of the police is bad for Durham residents, and dangerous for its officers.

To regain the support of the community, Durham Police Department leadership should recommit itself to justice, fairness and the rule of law for every Durham resident. Our new chief should not seek to increase enforcement numbers at the expense of the constitution and the core freedoms it protects.

Warrantless searches should be the exception, not the rule.

An officer who stops African-Americans in 76 percent of his traffic stops should expect to be held to account for this by the chief in annual review, not for the first time - years later - while under cross-examination in a court of law.

The police chief must support our jury system. Whether a chief agrees or disagrees with a jury verdict involving his officers, the jury system is a foundation of our constitutional democracy.

We need an experienced police chief who supports community policing, and who will listen, be accountable and respond to community members as well as police officers.

We can have better citizen - police relations by enacting a number of training and open government reforms, including:

-- Better de-escalation training. Conflict resolution and de-escalation techniques are a perishable skill just like firearms training or defensive tactics, and should be trained and refreshed as a first-line choice for resolving disagreements in the field. Every time an officer uses legal but unnecessary force, that force breaks bonds with residents and undermines trust; it instills fear.

-- Where traffic stop and search statistics show racial disparities for individual officers or squads, the department should investigate to determine the causes of the disparities, just as the Fayetteville police chief has done.

-- Internal Affairs should earn the trust of citizens by taking disciplinary action against officers who violate the rights of citizens. One bad officer makes life more dangerous for every other officer. Protect and reward officers who report the misconduct of others on the force.

-- Citizens should be allowed to see use of force reports, in-car and body camera footage that involves their own interactions with police.

-- Every officer should be required to take the specialized training about interacting with the mentally ill, people in crisis and the disabled.

-- Ideally, every officer should have Spanish language skills. In addition, the chief should use his discretion in favor of certifying U Visas for crime victims rather than what seems to be erring in favor of denying certification.

-- DPD officers should be treated fairly and well-paid for the hard, dangerous job they do so that they do not have to work second jobs serving private interests. They should be given financial incentives to live within the city limits and be officers who are fully part of our community.

-- The department should set up systems in cooperation with the district attorney's office to ensure that prosecutors know about, locate and release evidence favorable to accused persons. The constitution requires prosecutors to know of evidence in law enforcement files that would be helpful to the accused.

-- The DPD should work with the city manager to make all Internal Affairs investigations public - at least in summary fashion -- to restore public trust unless there is a compelling reason to keep them secret. This openness is permitted by law if the City Manager declares that it is necessary. This information to too important to be kept hidden by default.

Durham residents will cooperate and support a police department and police chief who are open and more respectful of their rights, and who cultivate officers who live up to the high constitutional standards required of those who take an oath to serve and protect.

The day after Thanksgiving, the postman brought a 10-pound box to my law office. It was from the Federal Bureau of Investigation. I knew that inside the bulging cardboard were reams of paper created, studied, indexed and stored for as long as a half century. All of it was about the late Thurgood Marshall.

I practice law in the areas of civil rights and criminal defense. Justice Marshall is one of my legal heroes. But I also write about the FBI and the Supreme Court. So I had bad feelings as I cut open the box to find some 1,300 pages of records. Three years after the great civil rights champion's death, the FBI was finally releasing its main file records under the Freedom of Information Act.

The bulk of the paperwork was produced by lowly special agents. They had interviewed friends, enemies, neighbors and politicos during FBI background investigations of Marshall after he was nominated for high government posts -- appellate judge, solicitor general and justice of the Supreme Court.

The background-check file also contained FBI reports from the '40s and '50s and report after report about the prior reports. In the report summaries, and in the internal security file and the miscellaneous file kept at FBI headquarters, were memos that will be mentioned in future Marshall biographies. These memos from FBI Director J. Edgar Hoover's top men describe how Marshall provided confidential information to the FBI from 1956 to 1959 while serving as director-counsel for the NAACP Legal Defense and Education Fund.

I've reflected on the revelations and the consternation in the African American and liberal white community about all of this and concluded that Thurgood Marshall is still my hero. He's more of a real-life person now. The FBI papers are a reminder that my legal heroes had to compromise and adapt to the political winds of their time. Thurgood Marshall should be viewed in the context of his time not ours. His legacy is not diminished.
Marshall was no informer out for personal profit or advantage. During those Cold War days, Hoover loomed large over the political and cultural scene as a crime- and communist-busting superman. He was not vilified as he is today. Much less was known about how he conducted the operations of the FBI.

In the late 1950s, the NAACP was under attack. The FBI had paid informers within it and just about any organization working for progressive change in this country. The reports sent to headquarters were captioned "Communist infiltration of the NAACP" or "Communist Party -- Negro Question."
Marshall had been an outspoken critic of the FBI's lax enforcement of civil rights laws. But he was an anti-communist. When he provided information and sought the assistance of the FBI, he was probably doing so to stave off attacks from the bureau and others who perceived the organization as subversive.

So far, the bureau has ignored my request for hundreds of cross-referenced documents and electronic-surveillance records (I have filed an appeal), but I have been relieved to see that the files the FBI has consented to release about Thurgood Marshall contain no suggestion that he provided privileged information to the bureau while on the Supreme Court. Other justices not only served as FBI informers while on the court but accepted gratuities and favors.

Justice Abe Fortas told the FBI about the secret conference discussions of his brethren on the sensitive issue of illegal wiretapping in cases then pending before the Supreme Court in 1966. In one case, Fortas warned his bureau contact in advance of the decision and revealed the substance of the ruling. (Thurgood Marshall was then solicitor general and had forced the issue of FBI illegality by telling the high court of the warrantless bugging of a man whose criminal conviction had been upheld by the justices.) In the late 1950s, Justice Tom Clark called Hoover for quotations to use in his communist-bashing dissents.

Some other great liberal jurists had cozied up to Hoover. Earl Warren, as a California district attorney, attorney general and governor, had a long-standing political alliance with the FBI. The chief justice continued on Hoover's "special correspondents list" until the Warren Commission Report was issued; he was provided such favors as private detective services. None of these perks helped Hoover when it came to Warren's rulings. (Like Marshall, Warren is still a hero of mine.)

Thurgood Marshall's interaction with the FBI was different. He engaged in ill-advised information swapping with Hoover's high command and agents in the New York field office for about three years before he became a justice. I cannot judge the great man from the safety of 1996 and my white skin. So I will continue to remember him for a lifetime of bravery, on and off the court.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.